Animus

A Short Introduction to Bias in the Law

William D. Araiza

• Publisher: NYU Press
• Year: 2017
• ISBN:
  9781479848805
• Topic: Jura
• Subtopic: Öffentliches Recht

An introduction to the legal concept of unconstitutional bias. If a town council denies a zoning permit for a group home for intellectually disabled persons because residents don’t want “those kinds of people” in the neighborhood, the town’s decision is motivated by the public’s dislike of a particular group. Constitutional law calls this rationale “animus.” Over the last two decades, the Supreme Court has increasingly turned to the concept of animus to explain why some instances of discrimination are unconstitutional. However, the Court’s condemnation of animus fails to address some serious questions. How can animus on the part of people and institutions be uncovered? Does mere opposition to a particular group’s equality claims constitute animus? Does the concept of animus have roots in the Constitution? Animus engages these important questions, offering an original and provocative introduction to this type of unconstitutional bias. William Araiza analyzes some of the modern Supreme Court’s most important discrimination cases through the lens of animus, tracing the concept from nineteenth century legal doctrine to today’s landmark cases, including Obergefell vs. Hodges and United States v. Windsor, both related to the legal rights of same-sex couples. Animus humanizes what might otherwise be an abstract legal question, illustrating what constitutes animus, and why the prohibition against it matters more today than ever in our pluralistic society.

Part I

Laying Out the Tools

1

Class Legislation and the Prehistory of Animus

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

—Federalist No. 10 (James Madison, 1787)

The modern history of animus begins in 1973, with the Supreme Court’s decision in Department of Agriculture v. Moreno.1 Chapter 2 tells the story of that case, with later chapters explaining how the Court built on Moreno’s insights. But Moreno itself hearkened back to earlier insights, even if the Court did not explicitly acknowledge them. This chapter considers that prehistory.

The Problem of Faction

That prehistory goes back a long way—at least to the era immediately preceding the drafting of the Constitution. During that time—in particular, the decade between independence and the Philadelphia Convention in 1787—Americans experienced real self-government for the first time. At least to some prominent Americans, that encounter was not unambiguously positive. Soon-to-be framers such as James Madison observed the tendency of newly powerful state legislatures to oppress political rivals and thereby violate rights of contract and property. They noted, for example, the tendency of legislatures to enact debt-relief legislation that had the effect of impairing the contractual rights of creditors. Such impairments sometimes took a remarkably targeted form, such as laws that interfered with particular court decisions.2

Such violations and interference may be troubling, but what do they have to do with animus? Madison had a theory. Surveying what he had witnessed during that decade-long period, he observed that state legislatures—made newly powerful by the departure of colonial governors and their replacement with often-weaker state governors—had fallen prey to the influence of what he called “faction.” In one of the Federalist Papers, pamphlets written to persuade New Yorkers to ratify the newly drafted Constitution, Madison defined faction as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Note that under this definition even a majority can be a “faction”; what distinguishes factions is not their numerosity but their commitment to an interest distinct from the public interest.3

Thus Madison assumed that there exist “permanent and aggregate interests of the community,” which might be adverse to the interests of even a numerical majority. We can understand such interests, at least conceptually, as those on behalf of the general public or society at large. Of course, this understanding raises the formidable practical challenge of distinguishing factional interests, especially those held by a numerical majority, from such “public” or “general” interests. We will return to that difficulty later in this chapter. But for now we can bracket it, as we examine Madison’s theory more fully.

In Federalist No. 10, the same pamphlet in which he identified the problem of factions, Madison explained how the proposed Constitution would limit their power. First, he argued, the system of separated national powers the Constitution established (that is, the executive, legislative, and judicial branches) would help ensure that, at least at the federal level, any particular faction would find it harder to grasp all the reins of sovereign power simultaneously. This argument flowed directly from Madison’s observation of state legislatures in the immediate post-independence period. As noted above, that era witnessed more powerful state legislatures, as colonial governors were replaced by often-weaker state governors and as legislatures felt themselves empowered to interfere with judicial decisions. According to Madison, the creation of three independent and co-equal federal branches would help ensure that no faction could easily grasp all the analogous levers of federal power at once.

Second, and sometimes less appreciated, Madison also argued that an “extended” republic4—that is, a republic the size of the new United States—was better placed to resist factions. According to Madison, the sheer size of the nation and its government would make it difficult for one particular faction to obtain power in the new federal government. After all, factions, by definition, arose from shared but fundamentally limited interests, such as class interests or particular religious beliefs. Madison’s theory is that such factions would naturally be limited in scope—or that, at least, they would find it more difficult to obtain majority support across such a large polity.

But what about states? Madison’s innovations applied to the federal government, not the states. Still, the new Constitution spoke to state governments as well. In particular, Article I, Section 10, imposed a list of prohibitions on states. Some of them—for example, the prohibition on states entering into foreign treaties—reflected the necessary transfer of much sovereign power to the new federal government. But more important for our purposes, Article I, Section 10, also included a series of restrictions on states that sought to curb abuses Madison and other framers had detected in states’ practices in the then-recent past. In particular, by forbidding states from coining money, making “any Thing but gold and silver Coin a tender in Payment of Debts,” or passing any “ex post facto Law” or “Law impairing the Obligation of Contracts,” Section 10 sought to prohibit the particular abuses the framers had detected.

Class Legislation

Still, those and other narrowly focused constitutional prohibitions could not hope to provide comprehensive curbs on state laws that reflected purely private interests, or “factions.” The original Constitution was primarily concerned with establishing the new federal government; while the document included scattered limitations on states, state government infringements on liberty and equality were thought to be properly remedied at the state level, by the people of the states themselves. Even the Bill of Rights, which established the familiar catalogue of rights Americans know today (for example, the right to freedom of speech and freedom from unreasonable searches and seizures), was intended to curb only the new federal government. Even as nationalist a jurist as Chief Justice John Marshall admitted as much; in one of his last great opinions he observed that the question of the Bill’s application to the states “was of great importance, but of not much difficulty.”5

Thus, if curbs were to be imposed on factional abuses by state governments, those curbs had to come from states themselves. And indeed, during the first half of the nineteenth century a jurisprudence evolved in state courts that sought to curb such abuses. That jurisprudence sought to police state laws for “class legislation.” As one might intuit from the label, “class legislation” was understood to consist of legislation that was intended not to benefit the public or general good but, instead, to enrich or despoil a particular class (or what we might very loosely translate today as an “interest group”).

Courts of that era sometimes located the ban on class legislation in specific provisions of their state constitutions. In particular, they often relied on “law of the land” provisions derived from Magna Carta, the thirteenth-century English statement of basic freedoms, which prohibited deprivations of important interests “except by the law of the land.” (Tellingly, this phrase was sometimes translated into American state constitutions as “due process of law”—the same restriction that appeared in the Fifth Amendment of the federal Constitution and that would eventually appear in the Fourteenth Amendment as a limitation on state action.) Other lower courts were not so picky about finding a particular textual foundation for their class legislation jurisprudence; sometimes they based their analysis on general, unwritten, principles of republican government.6

Regardless of the foundation, the class legislation bar spoke primarily to the generality of the challenged law—whether it prescribed one rule for one group of persons and another rule for another group.7 The Tennessee supreme court was one of the principal expositors of this idea. As that court explained in an 1829 case, Vanzant v. Waddell:

The right to life, liberty and property, of every individual must stand or fall by the same rule or law that governs every other member of the body politic . . . under similar circumstances; and every partial or private law . . . is unconstitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community who made the law, by another. The idea of a people through their representatives making laws whereby are swept away the life, liberty and property of one or a few citizens, by which neither the representatives nor their other constituents are willing to be bound, is too odious to be tolerated in any government where freedom has a name.8

There is deep political theory embedded in this short excerpt. Consider the Tennessee court’s concern about what might come to pass if the ban on “partial” or “class” legislation did not exist: In that case, “odious individuals and corporate bodies would be governed by one rule, and the mass of the community who made the law, by another.” Such an idea, the court shuddered, was itself “odious.” Madison probably nodded with approval at such statements: His concern with factions imposing particularly onerous rules on disfavored groups lay at the heart of statements like the one in Vanzant.

One illuminating application of this rule was in another Tennessee case, Wally’s Heirs v. Kennedy.9 Wally’s Heirs was a property law dispute in which the plaintiff sought to eject the defendant from the land in question. The jury ruled for the defendant once the court explained to it a then recently enacted Tennessee law specifying a particular evidentiary rule in land ownership disputes that involved speculative dealings in Indian-owned lands. The Tennessee supreme court reversed the verdict and struck down the law in question, describing it as “peculiarly partial” and “limited in its operation to a comparatively small section of the state, and to a very few individuals claiming a very small portion of the section of country referred to.” The court noted that the evidentiary rule at issue, if generally applicable, would defeat the meritorious claims of many bona fide landowners; thinking about the implications of such a result, the court stated that “it is confidently believed such a [generally applicable] law would not have found a single advocate in the legislature.”10

But the court was not done. It continued:

The act was intended to drive from the courts of justice a few odious individuals, who it was supposed had speculated upon the ignorance and necessities of the Indian reservees, and fraudulently obtained their claims for trifling considerations, and were corruptly obtaining evidence to establish rights to reserves, where the Indians in fact never had any, to the prejudice of the purchasers from the state. If the supposed facts did exist, there was good cause for public indignation, but none for a violation of the constitution by the passage of a law affecting the rights of a few individuals, but by which the great body of the people, or the legislators themselves, were unwilling to be bound. The part of the constitution referred to [the Tennessee constitution’s “law of the land” clause] was intended to secure to weak and unpopular minorities and individuals equal rights with the majority, who, from the nature of our government, exercise the legislative power. Any other construction of the constitution would set up the majority in the government as a many-headed tyrant, with capacity and power to oppress the minority at pleasure, by odious laws binding on the latter.11

So expressed and implemented, class legislation theory could be understood as a powerful, yet restrained, judicial tool. On the one hand, by insisting that laws be general, the prohibition on class legislation ensured fair, non-oppressive, government: After all, as Vanzant recognized, nothing stops a majority from enacting oppressive legislation as much as the prospect of that law applying to them as well as their enemies. On the other hand, this tool did not on its face prohibit the government from doing anything, as long as the rules it enacted applied to everyone similarly situated. The self-controlling effect that flowed from forcing the majority to abide by the same restrictions it wished to impose on the minority, remarked upon in Vanzant and Wally’s Heirs, has often been recognized in American law.12 For example, more than one hundred years after these cases, Justice Robert Jackson of the U.S. Supreme Court recognized that effect when he expressed his preference for using equal protection rather than due process as the primary tool of judicial review, on the theory that, as Jackson said, “the framers of the Constitution knew . . . that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”13

We can recognize in this approach the hazy outlines of our modern-day concern with animus. As we will see when we get to modern constitutional law in the next chapter, the Court has consistently stated that “animus,” however defined, is a constitutionally illegitimate justification for a legislative action. We can hear a distinct echo of that statement in antebellum courts’ insistence that laws not be targeted at minorities simply because they are minorities or simply because they are disliked. The minority in Wally’s Heirs was clearly disliked; indeed, the court itself described them as “odious.” But to single them out for a burden—in the words of Wally’s Heirs, “to drive [them] from the courts of justice”—simply because they were disliked was constitutionally inadmissible. Under the Tennessee constitution’s law-of-the-land clause, it seemed, everyone—including despised minorities—enjoyed the right to be governed by the same law.

Still, the class legislation idea was difficult to apply. It might be fine in theory to insist that laws be general and that political majorities apply to themselves to same laws they wish to apply to minorities. But what if the situation genuinely called for differential treatment? Consider again the facts of Wally’s Heirs. The targeted group was apparently “odious” for a reason: Even the court that ruled in their favor recognized that they had preyed on Indian l...